Opinion
H050625
07-31-2024
THE PEOPLE, Plaintiff and Respondent, v. ERNEST GONZALES HERRERA, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. C1803765
WILSON, J.
A jury convicted defendant Ernest Gonzales Herrera of multiple sex offenses against multiple victims, each of whom was under the age of 14 at the time of the offenses. The trial court sentenced Herrera to a term of 15-years-to-life in prison.
On appeal, Herrera argues that: (1) the trial court abused its discretion by admitting evidence of a pretext phone call between himself and one of the victims, (2) the trial court abused its discretion by admitting photographs of each of the victims (all of whom were adults at the time of trial) which had been taken around the time of the offenses, (3) the trial court abused its discretion by admitting evidence of uncharged offenses, (4) the trial court erred by instructing the jury with CALCRIM No. 1191B concerning a propensity inference based on the charged sex offenses, (5) the trial court improperly admitted expert testimony on Child Sexual Abuse Accommodation Syndrome (CSAAS), (6) the trial court erred by instructing the jury with CALCRIM No. 1193 how it should evaluate CSAAS testimony, and (7) the cumulative effect of these errors warrants reversal.
Herrera also argues that, to the extent the court finds he has forfeited any of these claims due to trial counsel's failure to preserve them below, his trial counsel provided ineffective assistance. The Attorney General does not raise forfeiture and because we will address Herrera's arguments on the merits, we need not and do not address his ineffective assistance claims.
For the reasons discussed below, we reject Herrera's arguments in their entirety and will affirm the judgment.
I. Factual and Procedural Background
A. Procedure
On November 8, 2021, the Santa Clara County District Attorney filed a second amended information charging Herrera with five counts of committing a lewd act on a child under the age of 14 (Pen. Code, § 288, subd. (a); counts 1 (A. Doe), 2 (N. Doe), 3 (C. Doe), 4 (N. Doe), 6 (R. Doe), 8 (R. Doe)); two counts of attempting to commit a lewd act on a child under the age of 14 (§§ 664, 288, subd. (a); counts 5 (C. Doe), 7 (R. Doe)); and one misdemeanor count of sexual battery (§ 243.4, subd. (e)(1); count 9 (R. Doe)). As to counts 1, 2, 3, 4, 6, and 8, the second amended information further alleged that Herrera had committed the offenses against more than one victim.
Although the victims were identified in the second amended information and at trial by their first names, with "Doe" as a last name, we will instead use their first initials (along with Doe) in order to better protect their privacy interests. (Cal. Rules of Court, rule 8.90(b)(4).) Unspecified rule references are to the California Rules of Court.
Unspecified statutory references are to the Penal Code.
At the conclusion of the trial, the jury convicted Herrera on all counts and found true the multiple victim allegations associated with counts 1, 2, 3, 4, 6, and 8.
On November 10, 2022, the trial court sentenced Herrera to a total term of 15-years-to-life in prison, consisting of an indefinite term of 15-years-to-life on count 1, with concurrent indefinite terms of 15-years-to-life on counts 2, 3, 4, 6, and 8, plus two concurrent middle term sentences of three years on counts 5 and 7 and a concurrent term of one year on count 9. The trial court awarded 1,463 custody credits plus 219 days of conduct credits, calculated at 15 percent pursuant to section 2933.1, for a total of 1,682 days.
The trial court imposed $405.00 in victim restitution (§ 1202.4, subd. (f)); a $10,000 restitution fund fine (§ 1202.4, subd. (b)), a parole violation restitution fund fine of $10,000 (§ 1202.45) (suspended), a $1,230 sex offender fine (§ 290.3), a $280 court operations assessment (§ 1465.8, subd. (a)(1)), and a $270 court facilities assessment (Gov. Code, § 70373). All fines and fees except for the $405 in victim restitution were stayed pursuant to People v. Duenas (2019) 30 Cal.App.5th 1157.
Herrera timely appealed.
B. Facts
1. Prosecution case
a. C. Doe's testimony (counts 3, 5)
C. Doe, who was 25 years old at the time of trial, testified that when she was around five or six years old, she went to visit her aunt, Y. Doe, and her uncle, Herrera, at their home. She was sitting on the living room couch with Herrera and Y. Doe watching television. Y. Doe went into the kitchen to prepare some snacks and C. Doe stretched her legs out across the couch. Herrera reached underneath C. Doe's clothes and put his fingers "around and a little bit inside" her vagina. C. Doe was confused and did not understand what was happening or why Herrera was touching her. Herrera continued to rub her vagina for about 15 minutes, stopping when Y. Doe returned from the kitchen with their food. C. Doe did not try to stop Herrera because she was afraid he might hurt her. She also did not tell her aunt or her mother, thinking that "someone might get hurt or in trouble ... ."
C. Doe testified that she had two sisters and a brother. P. Doe is their mother. A. Doe is her older sister, and R. Doe is her younger sister. In addition to Y. Doe, C. Doe had a second maternal aunt, L. Doe. L. Doe also had a daughter, N. Doe, who was C. Doe's cousin.
On cross-examination, C. Doe confirmed that, when she spoke to police about the incident in 2018 and when she testified at the preliminary hearing, she said that she felt "pressure" on her vagina, but there was no penetration.
When C. Doe was about eight or nine years old, she was again at Herrera's house. Y. Doe asked her to go upstairs and tell Herrera that dinner was ready. C. Doe went upstairs and found Herrera in a room sitting in front of a computer, masturbating. Herrera turned toward her, showed her his erect penis, and told her to touch it. C. Doe told him, "No," then ran back downstairs. C. Doe did not tell her aunt because she thought it might cause friction between her aunt and Herrera or that Herrera might hurt her aunt.
When C. Doe was interviewed by police about this second incident in 2018, she could not remember whether Herrera's penis was exposed.
In 2018, C. Doe learned that her younger sister, R. Doe, had been molested by Herrera as well, so she reported both of her encounters with Herrera to her mother and to the police. Before the incidents with Herrera, C. Doe "looked at him as an uncle[,]" but afterwards her relationship with him was "[w]eird[,]" because Herrera acted as if nothing had happened with her. She continued to visit his home but only to see her aunt, and she was "afraid" to see him as she did not want him to do anything to her again.
b. A. Doe's testimony (count 1)
A. Doe, who was 32 years old at the time of trial, testified that when she lived with her mother, A. Doe would visit Y. Doe and Herrera often, "maybe ... weekly _." One time, when A. Doe was around seven years, Herrera did something that made her feel uncomfortable. A. Doe recalled she was wearing a teal green t-shirt with a Disney character on it and "teal-colored/gold sweatpants." Although it was not a holiday, lots of family members were at Herrera's house when A. Doe arrived. Y. Doe told A. Doe that all of her cousins were in the" 'bonus room'" upstairs which had a "pool table [] and all the video game systems, [and] computer."
As A. Doe went upstairs, Herrera came out of his bedroom which was just at the top of the stairs. Herrera was in his underwear, which A. Doe said were black briefs. A. Doe went to give him a hug and Herrera squatted down, hugged her and kissed her on the mouth. A. Doe felt his tongue go into her mouth which felt weird so she ran into the room where her cousins were playing.
A. Doe did not tell anyone about the kiss despite how uncomfortable it made her feel. Her mother and her aunts "constantly" told her that family was important, that one had to be "loyal to family[,]" and "family wouldn't do wrong things to you." A. Doe did not think that anyone would believe her, especially her aunt, Y. Doe, because she was married to Herrera. Whenever A. Doe went to Herrera's house afterward, she only did so to see her aunt or other family. She would say hello to Herrera but not engage with him otherwise.
In 2016, A. Doe became temporary guardian to her younger sister, R. Doe, who was then about 14 years old. In 2018, when R. Doe was about 16 years old, A. Doe dropped her off to stay with Y. Doe and Herrera for about a week while school was not in session. Despite what Herrera had done, A. Doe was hopeful nothing would happen to R. Doe. However, R. Doe told A. Doe that Herrera did something to her. In the course of reporting what happened to R. Doe to the police, A. Doe told the police about the incident with Herrera kissing her.
On cross-examination, A. Doe testified that when she was three or four years old, she was sexually assaulted by her mother's boyfriend, and then placed in foster care. At the time of the incident with Herrera, she was living with her father and stepmother.
c. N. Doe's testimony (counts 2, 4)
N. Doe was 34 years old at the time of trial. A. Doe, C. Doe, and R. Doe were her cousins and one of her maternal aunts, Y. Doe, was married to Herrera.
When she was younger, N. Doe would spend a week or two every summer, as well as holidays, at Herrera's house. N. Doe described three incidents, which occurred when she was between nine and twelve years old and she was staying at Herrera's house, where Herrera made her feel uncomfortable.
In the first incident she could recall, N. Doe said she was sleeping on a pallet on the floor in her aunt and Herrera's bedroom. She remembered waking up in the middle of the night, with Herrera kneeling on the floor next to her. Herrera was holding her hand on his exposed penis. N. Doe could not recall if he moved her hand at all, but she lay there quietly for a couple of minutes. Herrera did not speak to her, and N. Doe has no recollection of how the incident ended. N. Doe fell back asleep and the next day, everyone "got up and went about the day." N. Doe did not tell her aunt or anyone else what Herrera had done, and at that age, she "probably had no idea what was going on[] [or] ... how to process it, so ... [she] probably just ignored it."
N. Doe testified that she could not necessarily place these events in chronological order.
Within a year or so of the first incident, N. Doe was alone in a vehicle with Herrera, and they were stopped at a stoplight. Herrera grabbed her left hand and put it inside his shorts. N. Doe could feel his penis through his underwear. The incident was brief, no more than five minutes, because Herrera let her hand go when he started driving again. N. Doe felt "[g]ross" but could not otherwise remember what was going through her mind at the time. Again, she did not tell her aunt.
Again, N. Doe could not recall the order these events took place but only "kn[e]w it was all kind of around the same time frame."
N. Doe said that the third incident did not involve any physical touching. She was sitting on a couch in Herrera's living room. Herrera was standing across from her in a bathrobe, facing a sliding glass door that led to the backyard. N. Doe could see the lower part of Herrera's body, including his penis, in the reflection. Herrera was touching his penis, though "he could have been scratching[.]" Herrera did not say anything to N. Doe as this happened, nor did she say anything to him. N. Doe did not tell her aunt or anyone else about the incident.
N. Doe first told her husband about what Herrera had done in 2007 or 2008, and he had her tell her parents. She did not tell anyone in law enforcement what had happened until the police contacted her in 2018 regarding Herrera's offenses against her cousins.
d. R. Doe's testimony (counts 6, 7, 8, 9)
R. Doe was 19 years old at the time of trial. R. Doe testified about four incidents she remembered taking place at Y. Doe and Herrera's house. The first incident R. Doe described happened during the summer while she was in high school. R. Doe was sitting on the couch when Herrera walked over to her and told her she had "nice legs." Herrera reached out, touched her thigh, and then touched her vagina.
The next incident R. Doe recalled was when she was around 10 years old. Herrera was sitting on the couch when he grabbed her hand and put it on his penis.
R. Doe described a third incident that happened when she was younger than 10, or possibly between 10 and 12 years old. R. Doe had gone to the bathroom in the morning and when she came out of the bathroom, she saw Herrera. Herrera was naked and he told her to get in bed with him. R. Doe did not do so.
The final incident took place when R. Doe was younger than 14 years old. R. Doe was sleeping on the floor next to Herrera's dog. R. Doe woke up and Herrera was kneeling bedside her. Herrera took R. Doe's hand, put it on his exposed penis, and made her stroke it. Y. Doe was in the bathroom nearby and when she called out to Herrera, asking what he was doing, he said that he was petting the dog.
R. Doe did not tell anyone about these incidents when they occurred because she was scared no one would believe her or that she might break up the family. In November 2018, R. Doe went with her sister, A. Doe, to talk to the police, who asked her to make a pretext phone call to Herrera in order to gather as much information as possible. A police officer provided R. Doe with sample questions to ask Herrera and told her that he would be listening in on the call as well as recording it. That recording was played for the jury. R. Doe testified that, a couple of months prior to the pretext call, Herrera had been hospitalized after suffering a heart attack.
e. Pretext call
During the call, R. Doe told Herrera that something had been bothering her "because of [him]." Herrera asked her what happened and R. Doe said, "when you were like touching me and stuff ... ." Herrera said, "I'm sorry[,]" and then told her to not "bring that up" and "[w]e don't need it." He then said, "I apologize if - if I did touch you in any inappropriate way."
Herrera said that he did not remember what he did, but "if I did, I don't-I didn't mean to." He did not mean to touch her leg or hurt her but was "sorry if [he] did." Herrera said he did not know what R. Doe was talking about but would not try to touch her inappropriately or do anything to hurt her. He could not remember any of the things that R. Doe told him about. Herrera said he would not remember the events if he had been drinking.
R. Doe pushed back against Herrera repeatedly saying he did not know what she was talking about, saying he "damn well" knew he had molested her. She pressed him to tell her why he did it, but Herrera said, "I didn't do anything, honey." When R. Doe said she still remembered everything, Herrera replied, "I didn't do anything wrong, honest." R. Doe asked why Herrera held onto her arm while she was touching his penis and would not let her go. Herrera denied doing that and said he did not know what she was talking about. Herrera told R. Doe he was sorry "for whatever [she was] feeling[,]" but he did not know why she was doing this.
R. Doe said that all she wanted was for him to tell her what he did. Herrera said that he would, if he had done anything, but he did not. He could not say what she wanted him to say because he did not "want to have to lie to [her] ... [or] make up any stories." Herrera insisted he did not know what R. Doe was talking about.
f. L. Doe's testimony (uncharged acts)
L. Doe was 64 years old at the time of trial and is N. Doe's mother. Herrera is her brother-in-law. As an adult, L. Doe would visit her older sister, Y. Doe, and Herrera twice a year on holidays and Herrera never did anything that made her feel uncomfortable.
When L. Doe was 11 or 12 years old, however, she was staying over at Y. Doe and Herrera's house, sleeping on a couch in the living room. Herrera came into the room, wearing a robe with nothing underneath. He came over to the couch, pulled up L. Doe's shirt and began touching her breasts. Herrera then pulled L. Doe's blanket aside, removed her shorts and started rubbing her vagina. Herrera inserted his finger into L. Doe's vagina and, with his other hand, put her hand on his penis and made her stroke it. L. Doe felt horrible because of what Herrera was doing to her.
Y. Doe walked down the hallway, looking for Herrera, and he ducked down so she could not see him. Y. Doe went back to her room without checking on L. Doe and Herrera left the living room as well. L. Doe did not call out to Y. Doe or say anything to Hererra at any time that night. L. Doe did not say anything to Y. Doe because she was scared and did not know why Herrera would do that.
The next two nights, the events repeated, with the exception of Y. Doe looking for Herrera. Herrera came into the living room, removed L. Doe's clothing, fondled her breasts, inserted his finger in her vagina, and made her stroke his penis. Herrera did not say anything to her, nor did L. Doe say anything to him. After some period of time, Herrera got up and left. L. Doe did not say anything to her sister about any of the events because she was scared and "being touched like that" makes a woman afraid to tell anyone what happened.
L. Doe, along with her parents, continued to go to Y. Doe and Herrera's house for holiday family gatherings. L. Doe did not tell her parents what Herrera had done and did not tell anyone else until 2018 when she learned that Herrera had molested her nieces, A. Doe, C. Doe, and R. Doe.
When L. Doe's daughter, N. Doe, was a child, she would visit Y. Doe and Herrera, but L. Doe did not think Herrera would do anything to her daughter. L. Doe thought and hoped she was the only one Herrera had molested. In 2008, however, N. Doe called L. Doe and told her that Herrera had touched her when she was a child.
g. Child Sexual Abuse Accommodation Syndrome (CSAAS) testimony
Dr. Anthony Urquiza, a licensed psychologist, professor of pediatrics at the University of California Davis (UC Davis) Medical Center, and director of the UC Davis Child and Adolescent Abuse Resource and Evaluation Center, testified as an expert in CSAAS. Dr. Urquiza did not know anything about the charges or the facts of the case, had not interviewed any witnesses or spoken to Herrera, had not read any police reports or other case documents, and had not listened to any audio recordings related to the case.
Dr. Urquiza explained that there are five parts to CSAAS: secrecy, helplessness, entrapment and accommodation, delayed and unconvincing disclosure, and retraction or recantation. However, these five traits are not diagnostic. CSAAS is an educational tool to help therapists more effectively treat children and eliminate any misperceptions therapists and others may have.
According to Dr. Urquiza, the concept of secrecy usually arises because children who have been sexually abused often have an ongoing relationship with the abuser. The abuser occupies a position of power over the child and, in cases, where the abuser is a family member, the child has little to no control over whether they continue to interact with that person.
Dr. Urquiza explained that the concept of helplessness addresses the common misperception that sexually abused children are able to prevent the abuse from happening or recurring and able to keep themselves safe. He testified that where there is an ongoing relationship between the victim and the perpetrator, the perpetrator has the power and the child does not. In such a dynamic, "it doesn't happen that [a child will] fight off the perpetrator, [] yell, [or] scream. Their position in that relationship causes them to be relatively helpless." Where the abuser is a family member, the abuser's power is even greater, making the victim feel even more helplessness in those circumstances.
According to Dr. Urquiza, children can delay reporting the abuse for various periods of time and many children do not disclose the abuse until they are adults. A victim who has delayed reporting may struggle to accurately recall details due to the passage of time.
2. Defense case
Christopher Herrera, Herrera's son, testified for the defense. Christopher was 38 years old at the time of trial. He did not have children and had lived with his parents his entire life, except for a summer or two when he was perhaps 30 years old.
Because Christopher has the same surname, we will refer to him by his first time to minimize confusion.
A few days before he testified, Christopher contacted the defense investigator after learning that the investigator had taken photographs of the stairs in his family's home. When his mother told him about the photographs, Christopher remembered an incident he witnessed on that staircase when he was a child between 8 and 10 years old. Christopher remembered seeing his cousin A. Doe at the top of that staircase with A. Doe's mother's boyfriend. Christopher saw the boyfriend put his hand up A. Doe's skirt toward her "private parts." Christopher did not tell anyone what he had seen because he "didn't understand at the time." The first person he told was his mother, Y. Doe, after hearing that A. Doe had accused Herrera of kissing her while on that staircase.
Christopher never saw Herrera act inappropriately with C. Doe, R. Doe, N. Doe, or A. Doe, and never saw any of his cousins act strangely or nervously around his father. Herrera "has a good character for appropriate behavior with children[,]" and Christopher would not perjure himself for his father if he had seen him act inappropriately. Christopher considered Herrera to be a good father, and he did not want anything bad to happen to him, including being convicted in this case.
II. Discussion
A. No error in admitting pretext phone call
Herrera contends the trial court erred by admitting statements he made during the pretext phone call with R. Doe, because she was acting as an agent of law enforcement in that call. He argues the statements were involuntary and coerced in violation of his due process rights. We disagree and conclude the trial court did not err in admitting the pretext phone call into evidence.
1. Applicable legal principles and standard of review
The standard for determining whether a defendant's admissions to police were voluntary was stated by the California Supreme Court in People v. Williams (2010) 49 Cal.4th 405, 436 (Williams): "A criminal conviction may not be founded upon an involuntary confession. [Citation.] 'The prosecution has the burden of establishing by a preponderance of the evidence that a defendant's confession was voluntarily made. [Citations.] In determining whether a confession was voluntary," '[t]he question is whether defendant's choice to confess was not "essentially free" because his [or her] will was overborne.'" [Citation.] Whether the confession was voluntary depends upon the totality of the circumstances. '" (Williams, supra, 49 Cal.4th at p. 436.) Thus, "[i]n evaluating the voluntariness of a statement, no single factor is dispositive." (Ibid.)
"Relevant considerations are' "the crucial elements of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity" as well as "the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health." '" (Williams, supra, 49 Cal.4th at p. 436.) Additionally," '[i]n assessing allegedly coercive police tactics, "[t]he courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable." '" (Ibid.) Thus,"' "advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary." [Citation.] In terms of assessing inducements assertedly offered to a suspect," '[when] the benefit pointed out by the police . . . is merely that which flows naturally from a truthful and honest course of conduct,' the subsequent statement will not be considered involuntarily made. [Citation.]" [Citation].' " (People v. McWhorter (2009) 47 Cal.4th 318, 357-358.) Most importantly, "[a] confession is not involuntary unless the coercive police conduct and the defendant's statement are causally related." (Williams, supra, 49 Cal.4th at p. 437.)
The trial court's legal conclusion as to whether a defendant's confession was voluntary is "subject to independent review on appeal." (People v. Dykes (2009) 46 Cal.4th 731, 752.) "The trial court's resolution of disputed facts and inferences, its evaluation of credibility, and its findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence." (Ibid.)
2. Analysis
Having carefully reviewed the transcript of the pretext telephone call between Herrera and R. Doe, we determine that, even assuming that R. Doe was acting as an agent of the police, Herrera's admissions during the call were voluntary.
Herrera was not in custody, did not know that the police were involved, and did not know that his conversation with R. Doe was being recorded. During the relatively brief telephone call, R. Doe asked Herrera multiple times why he touched her and implored him to admit that he had done so. Herrera's responses to her accusations were equivocal at best. He both denied having done anything to R. Doe but also apologized to her if he did touch her "in any inappropriate way."
In final argument, defense counsel informed the jury that the call was 17 minutes and 3 seconds in length.
Moreover, R. Doe did not make any promises indicating to Herrera that she would forgive him or that she would again visit his home if he admitted to molesting her. In response, Herrera repeatedly disclaimed knowingly touching her inappropriately and told R. Doe that he would not "lie" or "make up any stories" just to please her.
We are also not persuaded by Herrera's contention that R. Doe exerted a level of psychological pressure on him which rose to the level of coercion. In support of this claim, Herrera cites cases pertaining to psychological coercion by law enforcement officers or their agents. (See Maine v. Moulton (1985) 474 U.S. 159; Brewer v. Williams (1977) 430 U.S. 387.) In those cases, the interrogations were found to have violated the Sixth Amendment because they occurred after the right to counsel had attached. (See Massiah v. United States (1964) 377 U.S. 201, 206 [Sixth Amendment violated where federal agents elicited statements from defendant in the absence of his counsel after he had been indicted].) Consequently, those cases do not offer any assistance to Herrera's argument. The evidence in this case reflects that Herrera was not in custody or subjected to any show of authority. Police did not arrest Herrera until sometime after this phone call, and his right to counsel had not yet attached at the time the call took place. The record shows that Herrera's resistance, if any," 'far from reflecting a will overborne by official coercion, suggests instead a still operative ability to calculate his self-interest in choosing whether to disclose or withhold information.'" (Williams, supra, 49 Cal.4th at p. 444.)
We also reject Herrera's argument that, pursuant to Evidence Code section 1160, any apologies he made to R. Doe during the pretext call should not be admissible as evidence of his guilt. Evidence Code section 1160, on its face, applies to civil actions and Herrera cites no authority for the proposition that it has any utility in a criminal proceeding.
Based on the totality of the circumstances, we conclude that Herrera's statements to R. Doe during the pretext telephone call were voluntary and the trial court did not err in admitting that call.
B. Photographs of Doe witnesses
Herrera next claims the trial court erred in allowing the prosecution to introduce into evidence, for each of the Doe witnesses, one photo of them taken at around the time of the offenses. Herrera contends the photographs were irrelevant, but even if they had some relevance, that probative value was outweighed by their prejudicial effect. Finally, he claims that admitting the photographs violated his due process rights. Even if we assume error in the admission of the photographs, we conclude Herrera was not prejudiced because it is not reasonably probable the jury would have reached a different result in this case absent the photographs.
Specifically, the following photographs were admitted at trial: (1) a photo of C. Doe when she was approximately six years old; (2) a photo of A. Doe when she was six or seven years old; (3) a photo of N. Doe from when she was nine to 11 years old; (4) a photo of L. Doe when she was 11 or 12 years old; and (5) a photo of R. Doe from when she was about 10 years old.
1. Additional background
Before trial, the prosecution moved in limine to introduce images of each of the Doe victims that showed what they looked like around the time of the offenses. The prosecutor argued that the photos were relevant to show the "victims' appearance, size, and build at the time of the crimes" and it was his burden to prove that certain of the offenses were committed against a child under 14 years old. The defense filed a motion to exclude all such photographs as irrelevant since identity was not an issue in the case and the photographs were more prejudicial than probative as they would appeal to the jury's sympathy. While discussing the admissibility of the photographs just prior to the first witness being called, defense counsel offered to stipulate to the age element of the relevant charged offenses. After reviewing the proposed images, the trial court permitted the prosecution to admit one photograph per victim.
2. Applicable legal principles
Only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is "evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) A court has broad discretion under Evidence Code section 352 to exclude relevant evidence if it determines the probative value is substantially outweighed by its possible prejudicial effects. (People v. Merriman (2014) 60 Cal.4th 1, 74 (Merriman), citing People v. Clark (2011) 52 Cal.4th 856, 893.)
We review the trial court's evidentiary rulings for an abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717.) "We will not reverse a court's ruling on such matters unless it is shown' "the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." '" (Merriman, supra, 60 Cal.4th at p. 74, quoting People v. Brown (2003) 31 Cal.4th 518, 534.) Generally, the application of ordinary rules of evidence does not implicate the federal Constitution; accordingly, we review allegations of error under the "reasonable probabilit[y]" standard of People v. Watson (1956) 46 Cal.2d 818, 837 (Watson), unless the erroneous admission of evidence affects the fundamental fairness of the trial, in which case we apply the de novo standard of review. (People v. Marks (2003) 31 Cal.4th 197, 227; People v. Albarran (2007) 149 Cal.App.4th 214, 224, fn. 7.)
3. Analysis
Herrera notes there are no published California cases addressing the admissibility of photographs of a (now-adult) victim of child abuse depicting what that victim looked like around the time they were abused. Our research has disclosed none either. The closest analogous cases involve the crime of murder and address the admissibility of photographs of the murder victims taken before their death. In People v. Osband (1996) 13 Cal.4th 622, the California Supreme Court admonished, "[W]e have repeatedly cautioned against the admission of photographs of murder victims while alive unless the prosecution can establish the relevance of such items. [Citations.] Otherwise, there is a risk that the photograph will merely generate sympathy for the victims." (Id. at p. 677.) As our court stated in People v. Winn (2020) 44 Cal.App.5th 859, "[t]o comply with this stricture, the trial judge should carefully consider the actual relevance of photos of murder victims while alive, and, if such evidence is indeed admissible, state the grounds on the record, thereafter exercising vigilance to restrain counsel from the use of the photos for a purpose beyond that for which they were admitted." (Id. at pp. 866-867.)
We continue to caution the courts regarding admission of such photographs without establishing relevance. Nevertheless, even if we assume error, admission of the photographs had little to no prejudicial effect. The photographs themselves were innocuous, consisting of school portraits and holiday or vacation photos. As each of the Doe victims testified, the prosecutor asked them to identify a single photograph of themselves taken around the time of the offenses they described. The prosecution did not discuss the photographs at all in his opening statement or in final argument and instead focused the jurors' attention on the victims' demeanor and the consistency in their accounts. Defense counsel spoke about the photographs at some length, arguing to the jury that they had not been produced in order prove any relevant fact, but for the sole purpose of eliciting an emotional response and securing a conviction.
We find that Herrera was not prejudiced by the admission of these photographs given the weight of the evidence against him. The jury heard each of the victims testify as to what Herrera did to them and could directly observe their demeanor on the witness stand. The jury also heard Herrera's statements to R. Doe in the pretext phone call and could similarly weight the credibility of his denials. Herrera's entire defense was that the victims were not credible, but we do not find it reasonably probable that the jury would have reached a more favorable outcome if they had not seen the photographs of the Doe witnesses as children. (Watson, supra, 46 Cal.2d at p. 837.)
Herrera argues that admission of this evidence violated his due process rights and that the error is therefore subject to review under the stricter standard set forth in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) pursuant to which the burden is on the Attorney General to show the error was harmless beyond a reasonable doubt. We disagree that admission of these five photographs violated Herrera's due process rights or deprived him of his right to a fair trial.
While the jury may have felt more sympathy to each of the victims as a consequence of seeing a photograph of them as children, the jury also saw and heard each of them testify as to what Herrera did to them. The jury also heard both Herrera and R. Doe speaking in the recorded pretext call. We cannot say that it is reasonably probable the jury would have reached a different result in this case had they not seen the five photographs.
C. No abuse of discretion in admitting evidence of uncharged acts
Herrera next argues that the trial court abused its discretion admitting uncharged incidents involving N. Doe and L. Doe under Evidence Code section 1108 because, as to N. Doe, the act in question was not relevant to the charged crimes, and as to L. Doe, the conduct was both remote in time and inflammatory compared to the charged offenses. Herrera also argues the trial court abused its discretion in admitting evidence of these incidents under Evidence Code section 1101, subdivision (b) because his intent was not at issue, rather the question was whether he committed the charged offenses.
As we explain below, we conclude the trial court did not abuse its discretion in admitting the evidence pursuant to Evidence Code section 1108, subdivision (b); accordingly, it cannot be inadmissible under Evidence Code section 1101. (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 827 (Daveggio); Evid. Code, § 1108, subd. (a) [evidence admissible under § 1108, subd. (a) "is not made inadmissible by Section 1101"].)
1. Additional background
The prosecution moved in limine to admit evidence of uncharged offenses Herrera committed against N. Doe, C. Doe, L. Doe, and P. Doe pursuant to Evidence Code section 1108. The prosecution also sought to admit evidence of both charged and uncharged offenses pursuant to Evidence Code section 1101, subdivision (b) to show his intent. The defense moved to exclude this evidence pursuant to Evidence Code section 352.
The trial court excluded evidence of the uncharged offenses involving C. Doe and P. Doe in its entirety and we do not address this evidence further.
The court allowed evidence of the uncharged incident involving N. Doe and the uncharged incidents involving L. Doe pursuant to Evidence Code section 1108. The court also determined that this uncharged acts evidence was admissible under Evidence Code section 1101, subdivision (b) (which allows evidence of other acts of misconduct by a defendant to prove, inter alia, lack of mistake and intent).
2. Applicable legal principles
Evidence Code section 1108 is an exception to the general rule that "evidence of a person's character or a trait of his or her character . . . is inadmissible when offered to prove his or her conduct on a specified occasion." (Evid. Code, § 1101, subd. (a).) Evidence that a defendant committed a sexual offense is admissible character evidence in a "criminal action in which the defendant is accused of a sexual offense," as long as the evidence is not inadmissible under Evidence Code section 352. (Evid. Code, § 1108, subd. (a).)
A trial court "must engage in a careful weighing process" when determining whether to admit evidence under Evidence Code section 1108. (People v. Falsetta (1999) 21 Cal.4th 903, 913, 917 (Falsetta); People v. Baker (2021) 10 Cal.5th 1044, 1098.) "Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense." (Falsetta, at p. 917.)
We review a trial court's rulings under Evidence Code sections 1108 and 352 for abuse of discretion. (People v. Dworak (2021) 11 Cal.5th 881, 899-900.)"' "To establish an abuse of discretion, defendant[] must demonstrate that the trial court's decision was so erroneous that it "falls outside the bounds of reason." [Citations.] A merely debatable ruling cannot be deemed an abuse of discretion. [Citations.] An abuse of discretion will be "established by 'a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.'" '" (People v. Miracle (2018) 6 Cal.5th 318, 346-347.)
3. Analysis
The trial court's exercise of its discretion to admit the uncharged offenses against N. Doe and L. Doe was not arbitrary, capricious or so patently absurd that it resulted in a manifest miscarriage of justice. (Merriman, supra, 60 Cal.4th 1, 74.)
There were many similarities between the uncharged incidents and the charged offenses, in that Herrera took advantage of the victims' familial relationship to him and engaged in the activities when the victims were visiting or sleeping over at his home. Herrera touched the victims while they were sleeping or reclining on a couch in his living room while out of sight of his wife or anyone else in the house. All of the victims, including L. Doe, were under the age of 14 at the time that Herrera molested them. Although the events described by L. Doe took place many years earlier, their character was substantially similar to that described by the other four victims.
Furthermore, the testimony of other incidents by N. Doe and L. Doe was both brief and not especially graphic, limiting its potential prejudice. Weighing its probative value against that limited prejudice, it is clear the trial court did not abuse its discretion in admitting the testimony pursuant to Evidence Code section 1108 and concluding that it was not inadmissible under Evidence Code section 352. (Merriman, supra, 60 Cal.4th at p. 74.)
As noted above, evidence that Herrera committed other sexual offenses is not made inadmissible by Evidence Code section 1101 if the evidence is not inadmissible pursuant to Evidence Code section 1108. (Daveggio, supra, 4 Cal.5th at p. 827.) Consequently, we need not and do not address Herrera's argument that the trial court abused its discretion in admitting this evidence under Evidence Code section 1101.
D. No error in instructing jury with CALCRIM No. 1191B
Herrera contends the trial court erred in instructing the jury pursuant to CALCRIM No. 1191B. In his view, the instruction is legally erroneous in allowing the jury to consider evidence of charged acts of sexual abuse to be used as evidence of his propensity to commit other charged acts of sexual abuse. We do not agree.
Following the close of evidence and consistent with CALCRIM No. 1191B, the trial court instructed the jury as follows: "The People presented evidence that the defendant committed the crimes of lewd or lascivious act on a child under 14[] ... in Counts 1, 2, 3, 4, 6, and 8[;] attempted lewd or lascivious act on a child under 14 in Counts 5 and 7; and sexual battery in Count 9. [¶] If the People have proved beyond a reasonable doubt that the defendant committed one or more of these crimes, you may, but are not required to, conclude from that evidence that the defendant ... was disposed or inclined to commit sexual offenses, and based on that decision [], also conclude that the defendant was likely to commit and did commit other sexual offenses charged in this case. [¶] If you find that the defendant committed one or more of these crimes, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of another crime. The People must still prove each charge and allegation beyond a reasonable doubt."
As Herrera acknowledges, the California Supreme Court has held that Evidence Code section 1108, subdivision (a)'s reference to "the defendant's commission of another sexual offense or offenses" permits the jury to consider evidence of a defendant's charged sexual offenses, in addition to evidence of uncharged sexual offenses, to demonstrate his or her propensity to commit the other charged sexual offenses. In People v. Villatoro (2012) 54 Cal.4th 1152 (Villatoro), our Supreme Court held: "In short, we conclude nothing in the language of section 1108 restricts its application to uncharged offenses. Indeed, the clear purpose of section 1108 is to permit the jury's consideration of evidence of a defendant's propensity to commit sexual offenses. [Citation]. ... In light of this clear purpose, we perceive no reason why the Legislature would exclude charged sexual offenses from section 1108's purview, and no indication that it did so in either the text of section 1108 or its legislative history. Whether an offense is charged or uncharged in the current prosecution does not affect in any way its relevance as propensity evidence." (Id. at p. 1164.)
Decisions by the California Supreme Court are binding on this court and the trial court. (People v. Johnson (2012) 53 Cal.4th 519, 528.) Under Villatoro, the trial court correctly instructed the jury that if it found beyond a reasonable doubt that Herrera committed one or more of the charged lewd or lascivious acts, it could conclude from that evidence that he was likely to commit and did commit the other sexual offenses charged in this case.
E. No abuse of discretion in admitting CSAAS testimony
Herrera argues that the trial court abused its discretion by denying his in limine motion to exclude Dr. Urquiza's testimony on CSAAS. First, he argues the CSAAS testimony was not relevant because the prosecution did not establish that the jury currently held the myths and misconceptions that this evidence would address. Second, Herrera contends the CSAAS testimony was not sufficiently reliable to be admitted. Third, he argues the evidence should have been excluded under Evidence Code section 352 as more prejudicial than probative. Finally, Herrera argues the evidence violated his constitutional rights to due process.
As we explain below, we conclude the trial court did not err in admitting the CSAAS testimony and reject Herrera's arguments in their entirety.
1. Additional background
Before trial, the prosecutor moved in limine to admit Dr. Urquiza's testimony regarding CSAAS, arguing that his testimony would "disprove common myths and misconceptions about children's reactions to sexual abuse." He indicated that the evidence was relevant to counter defense arguments questioning the victims' credibility based on delay in reporting, inconsistencies in their accounts, or their continued relationship with Herrera. The prosecutor represented that the testimony would not be offered to prove that any sexual assault occurred, further noting that "the admonition provided in the jury instructions (See CALCRIM 1193/CALJIC 10.64[])" would "prevent the jury from considering the testimony for any impermissible purpose."
Herrera moved in limine to exclude Dr. Urquiza's testimony arguing that "there is a serious question" as to whether "jurors actually believe certain falsehoods" that CSAAS evidence purports to disprove. In the event the court was inclined to admit the testimony, Herrera requested "the standard limiting instruction ... []CALJIC No. 10.64[]" be provided to the jury and further argued the CSAAS witness should not be allowed to testify as to the credibility of a witness, comment on the facts of the case, or comment on a hypothetical closely tracking those facts. The trial court ruled that it would admit the evidence, subject to the limitations on its use, and that it would provide a limiting instruction to the jury.
The trial court did not specify at this stage of the proceedings whether it would instruct the jury with CALCRIM No. 1193 or CALJIC No. 10.64. It ultimately instructed the jury with CALCRIM No. 1193, impliedly rejecting Herrera's request for CALJIC No. 10.64. CALJIC No. 10.64, as tailored to a case involving sexual abuse of a female child, would provide: "Evidence has been presented to you concerning child sexual abuse accommodation syndrome. This evidence is not received and must not be considered by you as proof that the alleged victim's molestation claim is true. [¶] Child sexual abuse accommodation syndrome research is based upon an approach that is completely different from that which you must take to this case. The syndrome research begins with the assumption that a molestation has occurred, and seeks to describe and explain common reactions of children to that experience. As distinguished from that research approach, you are to presume the defendant innocent. The People have the burden of proving guilt beyond a reasonable doubt. [¶] You should consider the evidence concerning the syndrome and its effect only for the limited purpose of showing, if it does, that the alleged victim's reactions, as demonstrated by the evidence, are not inconsistent with her having been molested."
2. Applicable law and standard of review
Expert opinion testimony is admissible when the subject matter is "beyond common experience" and the opinion would assist the trier of fact. (Evid. Code, § 801, subd. (a).)" 'When expert opinion is offered, much must be left to the trial court's discretion.' [Citation.] The trial court has broad discretion in deciding whether to admit or exclude expert testimony [citation], and its decision as to whether expert testimony meets the standard for admissibility is subject to review for abuse of discretion.'" (People v. McDowell (2012) 54 Cal.4th 395, 426.)
"Trial courts may admit CSAAS evidence to disabuse jurors of five commonly held 'myths' or misconceptions about child sexual abuse. [Citation.] While CSAAS evidence is not relevant to prove the alleged sexual abuse occurred, it is well established in California law CSAAS evidence is relevant for the limited purpose of evaluating the credibility of an alleged child victim of sexual abuse." (People v. Lapenias (2021) 67 Cal.App.5th 162, 171 (Lapenias); see also In re S.C. (2006) 138 Cal.App.4th 396, 418; People v. Wells (2004) 118 Cal.App.4th 179, 188; People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745 (Patino); People v. Housley (1992) 6 Cal.App.4th 947, 955-956; People v. Harlan (1990) 222 Cal.App.3d 439, 449-450; People v. Stark (1989) 213 Cal.App.3d 107, 116-117.) CSAAS evidence "is admissible solely for the purpose of showing that the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested." (People v. Bowker (1988) 203 Cal.App.3d 385, 394.) "For instance, where a child delays a significant period of time before reporting an incident or pattern of abuse, an expert could testify that such delayed reporting is not inconsistent with the secretive environment often created by an abuser who occupies a position of trust." (Ibid.) CSAAS evidence "is not admissible to prove that the complaining witness has in fact been sexually abused; it is admissible to rehabilitate such witness's credibility when the defendant suggests that the child's conduct after the incident-e.g., a delay in reporting-is inconsistent with his or her testimony claiming molestation. [Citations.] 'Such expert testimony is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused children's seemingly self-impeaching behavior.'" (People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301, fn. omitted (McAlpin).)
3. Analysis
a. No abuse of discretion in admitting CSAAS evidence
Herrera objects to Dr. Urquiza's testimony on the grounds that CSAAS evidence is not reliable and the prosecution failed to show relevance since there is no reason to believe "there were myths or misconceptions [about child sexual abuse] to dispel." He also contends that the evidence should have been excluded under Evidence Code section 352 as "being unduly more prejudicial than probative." We are not persuaded.
As to Herrera's claim that the CSAAS testimony lacked reliability, the California Supreme Court ruled in McAlpin that this evidence is admissible to disabuse jurors of commonly held misconceptions about child sexual abuse victims' behavior and to explain seemingly contradictory behavior of a child sexual abuse victim. (McAlpin, supra, 53 Cal.3d at pp. 1300-1302.) As this court is bound by decisions of the California Supreme Court, Herrera's citations to decisions from other jurisdictions that reached different outcomes on the reliability and admissibility of CSAAS testimony have no effect on the binding nature of McAlpin. (See People v. Ramirez (2023) 98 Cal.App.5th 175, 216 (Ramirez).) In addition, Herrera has not cited any new studies or changes in scientific understanding that would justify us reconsidering a long line of California decisions on this topic. Based on binding precedent, as well as the substantial precedent set forth above regarding admissibility of CSAAS evidence, we conclude the trial court did not abuse its discretion when it ruled that the prosecution's proposed expert testimony on CSAAS was admissible for the limited purpose for which it was admitted in the instant case. (See Lapenias, supra, 67 Cal.App.5th at p. 172; Patino, supra, 26 Cal.App.4th at pp. 1744-1745; People v. Perez (2010) 182 Cal.App.4th 231, 245.)
Herrera also argues that the CSAAS evidence was not relevant because the prosecution failed to establish that there are currently held myths and misconceptions by jurors about child molestation. Other than summarily concluding that child molestation has become part of the generalized knowledge of jurors through news coverage of high profile cases, he provides no citation or record evidence for this assertion or that Dr. Urquiza's testimony "was [not] beyond the common experience of jurors." "Moreover, even if we were to assume that all the empaneled jurors were fully aware of all five components of CSAAS, we would then find [the CSAAS expert's] testimony to be merely cumulative and therefore not prejudicial." (Lapenias, supra, 67 Cal.App.5th at p. 173.) Four of the five Doe victims testified about how Herrera abused them twenty or more years prior. Under these circumstances, Dr. Urquiza's testimony may have assisted some jurors in understanding that witnesses' secrecy and delayed disclosures were not atypical reactions for children who experience sexual abuse. As a result, this testimony was relevant and there was sufficient foundation for admitting Dr. Urquiza's expert testimony on this subject.
R. Doe was 19 at the time of trial and she testified that she was around ten years old when Herrera first molested her.
We also reject Herrera's argument that the trial court abused its discretion by failing to exclude Dr. Urquiza's testimony pursuant to Evidence Code section 352. "The weighing process under [Evidence Code] section 352 depends upon the trial court's consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules." (People v. Jennings (2000) 81 Cal.App.4th 1301, 13141315.) "Evidence only creates 'undue prejudice' if the evidence tends to evoke an emotional bias against the defendant, and the evidence has relatively little importance based on the specific issues involved in the particular case. [Citation.]" (Lapenias, supra, 67 Cal.App.5th at p. 174.)
Here, any possible prejudicial impact of the CSAAS testimony-none of which was tied to the facts of this case in any way-was slight in comparison to the charged conduct. The trial court, after considering the parties' arguments and having been informed about the scope of Dr. Urquiza's testimony, determined that its probative value outweighed the possible prejudice. The trial court's ruling cannot be described as arbitrary or capricious and we conclude it did not abuse its discretion in admitting the testimony.
b. No due process violation
Finally, Herrera contends that the admission of the CSAAS evidence violated his due process rights to a fair trial because the "jury is likely to use CSAAS evidence as evidence that the complaining witness was credible and thus telling the truth at trial."
Generally, a court's compliance with the rules of evidence does not violate a defendant's right to due process. (Lapenias, supra, 67 Cal.App.5th at p. 174, citing People v. Hall (1986) 41 Cal.3d 826, 834-835.) Reviewing courts have also routinely held the admission of CSAAS evidence does not violate due process. (See, e.g., Patino, supra, 26 Cal.App.4th at pp. 1744-1745 [trial court's admission of CSAAS evidence did not violate due process].) For the same reasons, we conclude that Dr. Urquiza's testimony about CSAAS did not violate Herrera's constitutional right to due process.
Further, we have already rejected Herrera's contention that the trial court abused its discretion in admitting the evidence, due to its supposed lack of reliability, relevance, or because it was more prejudicial than probative under Evidence Code section 352. The "rejection of a claim on the merits necessarily leads to rejection of any constitutional theory or 'gloss' raised" on appeal. (People v. Scott (2011) 52 Cal.4th 452, 487, fn. 29.) Having rejected the underlying claims of error in admitting the CSAAS evidence, we accordingly reject Herrera's associated due process claim.
F. No error in instructing with CALCRIM No. 1193
Herrera next argues that the court erred in instructing the jury with CALCRIM No. 1193, because the instruction misstates the law and creates a reasonable likelihood the jurors would use the expert testimony to determine whether the Doe victims' testimony was true. We disagree.
1. Additional background
Before trial, Herrera requested that the court instruct the jury with CALJIC No. 10.64 as to the use of CSAAS evidence. The prosecution also requested that the court provide a limiting instruction, suggesting it employ CALCRIM No. 1193 or CALJIC No. 10.64. The trial court granted the parties' request but did not specify which pattern instruction it intended to use. The record does not contain a transcript of any hearing at which the parties and the court finalized the jury instructions.
The court instructed the jury, as follows: "You have heard testimony from Dr. Anthony Urquiza regarding [CSAAS]. Dr. Urquiza's testimony about [CSAAS] is not evidence that the defendant committed any of the crimes charged against him or any conduct or crimes with which he was not charged. [¶] You may consider this evidence only in deciding whether or not the victim's conduct was ... not inconsistent with the conduct of someone who has been molested and in evaluating the believability of her testimony."
2. Applicable law and standard of review
"We determine whether a jury instruction correctly states the law under the independent or de novo standard of review." (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) When we review a purportedly erroneous instruction, we consider" 'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." '" (People v. Richardson (2008) 43 Cal.4th 959, 1028.) We consider the instructions as a whole and" 'assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.'" (Ibid.)
3. Analysis
The trial court did not err in instructing the jury with CALCRIM No. 1193 because it is not reasonably likely that jurors understood the instruction as permitting the use of Dr. Urquiza's testimony for the improper purpose of proving that Herrera sexually abused the Doe victims. "CALCRIM No. 1193 informs jurors that they may use CSAAS evidence to evaluate whether the alleged victim's behavior, which may appear inconsistent with being molested, was actually not inconsistent with the behavior of a child sexual abuse victim." (Ramirez, supra, 98 Cal.App.5th at p. 219.) As our court noted in Ramirez, "CSAAS evidence is relevant and admissible when an alleged victim's credibility has been attacked. [Citation.]" (Ibid.) The instruction expressly tells the jurors that they must not consider the CSAAS evidence as determinative of the defendant's guilt.
Multiple courts have rejected similar challenges to CALCRIM 1193, such as People v. Gonzales (2017) 16 Cal.App.5th 494, People v. Munch (2020) 52 Cal.App.5th 464, and Lapenias, supra, 67 Cal.App.5th 162. This court did as well in Ramirez, supra, 98 Cal.App.5th at p. 220 and we see no reason to depart from the reasoning employed in those cases. "Because the instruction correctly informed the jury of the permissible and impermissible uses of [the CSAAS expert]'s testimony, and because there is no reasonable likelihood that the jury misconstrued or misapplied the instruction in the manner asserted by defendant, the trial court did not err in instructing the jury with CALCRIM No. 1193, and defendant's due process right was not denied." (Ramirez, supra, at p. 220.)
Even were we to assume that the trial court erred in instructing the jury with CALCRIM No. 1193, and even if that error implicated his federal constitutional rights, we conclude that any such error was harmless beyond a reasonable doubt under Chapman, supra, 386 U.S. at page 24. As discussed above, the jury was expressly instructed not to use Dr. Urquiza's testimony as evidence that Herrera committed the charged offenses. The jury was also instructed that they were the sole judge of a witness's credibility and were not required to accept an expert's opinion as true. In final argument, the prosecutor discussed Dr. Urquiza's testimony regarding delayed disclosure and secrecy but directed the jury to evaluate the Doe victims' credibility based on their demeanor, the similarity of their accounts of what Herrera did to them individually, as well as their lack of any motive to lie. In addition, Dr. Urquiza testified that he was not familiar with any of the facts of the case or any of the parties and was not proffering an opinion as to whether any molestation(s) took place. While there was no physical evidence in this case, each of the Doe victims' testimony corroborated the others and supports a conclusion that Herrera would have been convicted of the same offenses regardless of any alleged error in the instruction.
G. Cumulative error
Herrera next contends that the cumulative effect of the purported errors discussed above warrants reversal of the judgment. "In theory, the aggregate prejudice from several different errors occurring at trial could require reversal even if no single error was prejudicial by itself." (In re Reno (2012) 55 Cal.4th 428, 483.) Here, we have found no errors, and where we assumed error, we also found no prejudice. Consequently, we reject Herrera's cumulative error argument.
III. Disposition
The judgment is affirmed.
WE CONCUR: GREENWOOD, P. J., BROMBERG, J.